Plaintiff Frank Suter sought monetary damages for injuries sustained when his hand was caught in the cylinders of an industrial sheet metal rolling machine. At the time, Suter was employed by, as well as part owner of, Accurate Sheet Metal, Inc., a small industrial fabricator of sheet metal products, consisting primarily of ducts for heating and air conditioning. Suter charged defendant San Angelo Foundry & Machine Company, the manufacturer of the machine, with negligence and with breach of an express and an implied warranty that the machine was safe and fit for its intended purposes and was of merchantable quality.

The trial court, however, charged the jury only on the theory of strict liability. The court posed the issue in terms of whether the product as designed by defendant was reasonably fit for the ordinary use for which it was intended, whether the defect arose out of its design and while it was under defendant manufacturer's control, whether the defect proximately caused the injury, and whether plaintiff was a reasonably foreseeable user of the product. The trial court also charged, over plaintiff's objection, that plaintiff would be guilty of contributory negligence if he had not exercised that degree of care which a reasonably prudent person would have exercised under the circumstances. Six questions were submitted to the jury. Those questions and the jury's responses were as follows:

The trial court denied plaintiff's motion to dismiss the defense of contributory negligence, applied comparative negligence as provided in N.J.S.A. 2A:15-5.1 to 5.3 which had become effective in August 1973 (the accident having occurred on November 14, 1974) and entered judgment for plaintiff in the amount of $12,500.

On plaintiff's appeal, the Appellate Division, relying upon Bexiga v. Havir Manufacturing Corp., 60 N.J. 402 (1972), held in an unreported opinion that the defense of contributory negligence was unavailable. It modified the judgment by awarding plaintiff $25,000, the full amount of damages as fixed by the jury. We granted defendant's petition for certification, 76 N.J. 240 (1978).

The facts are virtually undisputed. Accurate Sheet Metal, Inc. (Accurate), located in Bloomingdale, New Jersey, was engaged in metal fabrication. Accurate had approximately 25 machines of various types, including a Lown 450, which it had purchased new in 1966. This machine, which had been built by defendant San Angelo Foundry & Machine Company, was used to flatten metal sheets and curve them into cylindrical shapes. Plaintiff had operated this piece of equipment on innumerable occasions between 1966 and the date of the accident in 1974.

The Lown 450 is powered by a one and one-half horsepower electric motor. The machine has three 50" long rollers which resemble those of an old-fashioned clothes wringer. Metal sheets up to 48" in width are fed between the two front rollers.

The metal is shaped into a cylindrical form when drawn upward and around by the rear roller. The right side of the machine is known as its "low end". The "low end" is equipped with a latched drop-arm which is used to open that side of the machine. Completed cylinders may then be removed. A cylinder may be reinserted for rerolling by opening up the drop-arm and sliding it back in along the bending rollers.

On the left side of the machine is a gear box cover which houses the motor. Mounted on the front of the cover is a control box which extends out from the face of the gear box cover. On the front of the control box are two buttons. One colored green and marked "start" is surrounded by a narrow collar so that it cannot be brushed accidentally. The other button, colored red, is designated "stop".

On top of the control box is a gear lever located 35" from the floor. The lever, extending out 4 1/4" from the front of the gear box, has three positions. When moved to the right, the rollers turn in a forward direction; when the lever is in the center, the rollers remain stationary; when moved to the left the rollers move counterclockwise.

A treadle, painted yellow, extends along the front base of the machine. If stepped on, it stops the machine by tripping out the relay and deactivating the motor. The machine would thereafter have to be restarted.

Pushing the green button activates the motor. However, the rollers do not turn until the lever is shifted to either the forward or reverse position. If the red stop button were pushed, the power would be cut off and the machine would stop. Touching the foot treadle would have the same effect. When using the machine, the operator leaves the power on until all the work is completed and relies principally on the lever to stop and start the rollers.

The accident occurred in the process of rerolling a metal cylinder that had been formed from a sheet 48" by 48". Four men, including plaintiff, had slipped the rolled metal through

the "low end" of the machine. The latched drop-arm was then closed. The motor was on, but the lever was in a neutral position so that the rollers were not moving. Plaintiff, while standing on the left side of the machine, saw a piece of slag lying in the metal cylinder. As he reached over to pull the slag out, his body brushed against the gear lever, pushing it into the forward position and activating the rollers.

The fingers of his right hand were caught and pulled into the rollers. He managed to yank his hand free, but only after it had been severely injured. Plaintiff was thereupon taken to a hospital, operated upon, and hospitalized. He returned to work about three weeks later.

Plaintiff's expert, an engineer, testified that the machine had been defectively designed. In his opinion a rotary guard should have been inserted around the lever or the lever mechanism should have been placed on top of the gear housing which is 45" above the floor. Either method would have served as protection against accidentally starting up the rollers. Both of these protective methods were in use when defendant made and sold this machine. As early as 1962 the National Safety Council had recommended installation of bar guards to prevent inadvertent striking of such levers.

Defendant's expert agreed that the rotary guard was an available design at the time the machine was made and that as a safety engineer he would have recommended such a device. In his opinion the accident occurred because plaintiff placed himself in an unsafe position while reaching inside the cylinder without first cutting off the power to the machine.

I

Our analysis of this case will focus first on the question of what types of conduct may constitute contributory negligence in a strict liability suit. Next we shall consider the applicability of the Comparative Negligence Act, N.J.S.A. 2A:15-5.1 to 5.3, to

that conduct. We shall then apply the principles so derived to the facts of this case.

Finally, we shall consider how a trial court should charge the jury on strict liability and its constituent elements. This consideration requires a review of the suggested instructions in Cepeda v. Cumberland Engineering Co., Inc., 76 N.J. 152 (1978). The trial court's charge in this case will then be tested against the conclusions we have reached.

II

We consider first the nature of a plaintiff's conduct which may bar recovery in a strict liability action. We have previously held that under some circumstances contributory negligence may be a defense. Ettin v. Ava Truck Leasing, Inc., 53 N.J. 463 (1969); Cintrone v. Hertz Truck Leasing & Rental Service, 45 N.J. 434 (1965). However, the nature of that contributory negligence is sharply circumscribed. Thus, plaintiff's negligence is unavailable as a defense when it consists merely in a failure to discover the defect in the product, or to guard against the possibility of its existence. See Restatement (Second) of Torts § 402A, Comment n (1965) [hereinafter recited as Restatement ]. Comment n further explains that the "form of contributory negligence which consists in voluntarily and unreasonably proceeding to encounter a known danger * * * is a defense * * *." Thus, generally where a plaintiff with actual knowledge of the danger presented by the defective product knowingly and voluntarily encounters that risk, a trial court should submit the defense of contributory negligence to the jury.*fn1 See Cintrone v. Hertz Truck Leasing & Rental

Service, supra, 45 N.J. at 458-459. As in any contributory negligence context, it is the defendant's burden to prove that the plaintiff's conduct was improper and was a substantial factor in causing his injury.

We pointed out in Cepeda v. Cumberland Engineering Co., Inc., 76 N.J. 152, 177-178 (1978), that an unforeseeable misuse of a product may not give rise to strict liability. As noted in that case, the use which the plaintiff makes of a product may be relevant on the plaintiff's case in the context either of showing that plaintiff's use of that product was outside or beyond its intended or foreseeable scope (thereby not being probative of whether the product was fit, suitable and safe), or that the abnormal use, rather than the defect, caused the injury. 76 N.J. at 176-177, see Twerski, "The Many Faces of Misuse: An Inquiry Into the Emerging Doctrine of Comparative Causation," 29 Mercer L.Rev. 403, 417-420 (1978).

It has been pointed out, for example, that the manufacturer of a knife cannot be charged with strict liability when the knife is used as a toothpick and the user complains because the sharp edge cuts. General Motors Corp. v. Hopkins, 548 S.W. 2d 344, 349 (Tex.1977). This is the type of case referred to in Comment h to § 402A:

A product is not in a defective condition when it is safe for normal handling and consumption. If the injury results from abnormal handling, as where a bottled beverage is knocked against a radiator to remove the cap, or from abnormal preparation for use, as where too much salt is added to food, or from abnormal consumption, as where a child eats too much candy and is made ill, the seller is not liable.

In other words, plaintiff's misuse of the product sheds no light on whether the product is reasonably fit and safe for its intended or reasonably anticipated use.

Misuse may also arise in connection with the question of operative causation. For example, where a surgical pin inserted to align a plaintiff's leg fracture and not for body support broke after the plaintiff, contrary to an express direction of his doctor, had walked upon the leg, it was held that the pin failed because

of its misuse. Though the pin's strength was shown to be less than intended, the evidence indicated that the pin would have broken in the absence of that weakening. Stewart v. Von Sollrig Hosp., Inc., 24 Ill.App. 3d 599, 321 N.E. 2d 428 (1974).

Both of these situations must be distinguished from that in which the plaintiff's conduct surfaces as an affirmative defense. As noted above, this occurs when the plaintiff has voluntarily and unreasonably proceeded to encounter the known risk. Thus, contributory negligence in strict liability may exist only in this context.

III

We pass next to the question of what effect, if any, the Comparative Negligence Act has on the contributory negligence defense in strict liability.

The act, adopted in 1973, provides:

Contributory negligence shall not bar recovery in an action by any person * * to recover damages for negligence resulting in death or injury to person or property, if such negligence was not greater than the negligence of the person against whom recovery is sought, but any damages sustained shall be diminished by the percentage sustained of negligence attributable to the person recovering. [ N.J.S.A. 2A:15-5.1]

The phrase "in an action * * * for negligence" may be read literally to refer only to the traditional negligence tort action. See Kirkland v. General Motors Corp., 521 P. 2d 1353, 1367 (Okl.1974). But such a reading is not in keeping with the spirit of the act. We must look to other indicia to illuminate the sense of the statute. We have frequently adverted to the interpretative guideline that statutes are to be read sensibly, the purpose and reason for the legislation controlling, rather than construed literally. See, e.g., Schierstead v. City of Brigantine, 29 N.J. 220, 230-231 (1959); Alexander v. N.J. Power & Light Co., 21 N.J. 373, 378-379 (1956).

It was the legislative belief that the Comparative Negligence Act would ameliorate to some extent the harshness which could result in application of contributory negligence in all tort actions. Thus, when Governor Cahill signed the legislation, he commented that "[n]o longer will a seriously [injured] person be prevented from obtaining compensation for his injuries merely because he was partially responsible, in a minor way, for the accident in which he was injured." Release from Office of the Governor, May 24, 1973. The Governor's explanation was keyed to the equitable desire to mitigate the unfairness associated with the total bar to recovery posed by common law contributory negligence. When the Governor made this explanation in 1973, contributory negligence had been firmly established as a defense in a strict liability action and there is no reason to believe that the Legislature intended to exclude contributory negligence in a strict liability case. The identical conduct by a plaintiff would bar recovery in a negligence action and it was the softening of the effect of that type of conduct at which the act was aimed.

Some supportive legislative history may be found in the Legislature's conscious adoption of the Wisconsin comparative negligence statute, Wis.Stat.Ann. § 895.045 (West Supp.1978). The Wisconsin courts had previously applied its comparative negligence act to strict liability, Dippel v. Sciano, 37 Wis. 2d 443, 155 N.W. 2d 55 (1967); Netzel v. State Sand & Gravel Co., 51 Wis. 2d 1, 186 N.W. 2d 258 (1971), and our Legislature may well have believed our statute would receive a comparable interpretation. See also Hagenbuch v. Snap-On Tools Corp., 339 F. Supp. 676, 682-683 (D.N.H.1972), wherein the New Hampshire comparative negligence statute was construed to apply to strict liability on the basis of the Wisconsin statute and case law. For the proposition that interpretation of a statute of another state by its courts may serve as an interpretative aid when our Legislature has adopted the same act, see, e.g., Todd Shipyard Corp. v. Tp. of Weehawken, 45 N.J. 336, 343 (1965); Bollinger v. Wagaraw

We read the term "negligence" in our act as being subsumed within the concept of tortious fault.*fn2 So, too, contributory negligence has been regarded as a form of contributory fault. See Ettin v. Ava Truck Leasing, Inc., supra, wherein we commented that "though we consider it hardly necessary, the term 'contributory fault' could, if so desired, readily be substituted for the term 'contributory negligence'." 53 N.J. at 472; see also Prosser, Torts § 65, at 418 (4th ed. 1971). Dean Prosser has elucidated this idea of fault in the following manner:

There is a broader sense in which "fault" means nothing more than a departure from a standard of conduct required of a man by society for the protection of his neighbors; and if the departure is an innocent one, and the defendant cannot help it, it is none the less a departure, and a social wrong. The distinction still remains between the man who has deviated from the standard, and the man who has not. The defendant may not be to blame for being out of line with what society requires of him, but he is none the less out of line. [ Prosser, supra, § 75, at 493]

So viewed, the notion of fault is readily seen to be inherent in the concept of strict liability. The manufacturer or supplier of a chattel has been charged with the duty of distributing a product which is fit, suitable and duly safe. Failure to comply with this standard constitutes fault.

Including as we do the act's use of the word "negligence" within the concept of fault, we construe the Comparative Negligence Act to require that the plaintiff's negligence must not be "greater than the negligence [or fault due to strict

liability] of the person against whom recovery is sought, but any damages sustained shall be diminished by the percentage sustained of negligence attributable to the person recovering." N.J.S.A. 2A:15-5.1.*fn3 The trier of fact should ascertain the extent to which plaintiff's negligent conduct was a proximate cause of the accident. Since it is plaintiff's negligent conduct which may cause diminution or foreclosure of his recovery, ascertainment of the extent to which that conduct was a proximate cause of the accident should be determined by the trier of fact.

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